The Mental Health Units (Use of Force) Act 2018 was given Royal Assent two and a half years ago but an implementation date for the substantive changes is yet to materialise. The government’s recently launched consultation on draft statutory guidance to accompany the legislation suggests, however, that implementation may now be just around the corner.
The legislation is aimed at preventing inappropriate use of force in inpatient mental health units and, once it comes into effect, will place new statutory obligations on the organisations running those units.
Whilst the Act itself includes a reasonable amount of detail on its key requirements, the draft statutory guidance provides a lot more information about how the government envisages mental health units implementing the legislative framework on the ground.
Organisations running mental health units will be obliged to have regard to the statutory guidance and risk legal challenge if they do not. They may therefore wish to take up the opportunity of feeding back on the draft version and have until midday on 17 August 2021 to do so.
Recap on the legislation
The Mental Health Units (Use of Force) Act 2018 (‘the Act’) applies to inpatient mental health units and imposes a number of statutory obligations on the organisations running those units, including NHS Trusts and independent sector organisations which provide an element of NHS-funded care.
Once the Act’s provisions come into force, mental health inpatient units will have to comply with a new set of legal requirements in relation to the use of force on patients, which includes restraint (physical, mechanical or chemical) and isolation (seclusion or segregation).
By way of recap, the key statutory obligations falling to organisations running mental health units will be to:
- Appoint a ‘responsible person’ to ensure compliance with the legislation Publish a use of force policy that meets the requirements of the Act
- Give patients information about their rights in relation to use of force
- Train staff in relation to appropriate use of force, as per the topics listed in the Act Keep records whenever force is used, including the information listed in the Act
- Properly investigate incidents where use of force results in serious harm or death
Given the national focus on reducing restrictive practices generally, and the requirements imposed by the CQC in relation to matters such as training, reporting and record-keeping around use of force, it is likely that most mental health providers will - in practice - already be compliant with much of the Act.
However, some aspects of it - particularly the requirement to appoint a ‘responsible person’ with ultimate responsibility for complying with the legal framework - are new. Also, the fact that these requirements are enshrined in separate legislation, together with the specific obligations around publishing use of force policies and ensuring people know their rights in relation to use of force, are likely to further increase public awareness and levels of scrutiny in this area.
The Act makes provision for statutory guidance to be produced to provide a more detailed, operational steer on how the legislation should be implemented. With the Act itself having received Royal Assent on 1 November 2018, the statutory guidance has been a long time coming but, with a draft of the guidance having recently been published for consultation, people who run and use inpatient mental health services now have an opportunity to influence how the final version will look.
What does the draft statutory guidance say?
Setting the scene, the draft statutory guidance explains that the aim of the use of force legislation and guidance is to address what it describes as the current ‘over-reliance on the use of force’ - “Whilst there is good practice in many of our mental health units, there is still a greater focus on managing behaviour rather than working to prevent situations from escalating to the point at which the use of force is seen as the only solution”.
As this is statutory guidance, departures from it could give rise to legal challenge - “There should be clear and cogent, documented reasons for departing from the guidance, as courts will scrutinise such reasons to ensure that there is a sufficiently convincing justification in the circumstances”.
Case studies and good practice examples are apparently going to be added to the final version of the guidance.
Anyone planning to respond to the consultation should read the consultation in full, but some of the headline points are set out below:
Responsible Person
One of the key provisions in the Act is the obligation on organisations that run mental health units to appoint a ‘responsible person’ for the purposes of the Act, in order to increase accountability in relation to use of force. The Act itself tells us that the ‘responsible person’ must be of an appropriate level of seniority and, whilst they will be able to delegate any of their functions to another person (also of an ‘appropriate level of seniority’), the ‘responsible person’ will retain ultimate responsibility for ensuring compliance with the legislation.
The draft statutory guidance provides some further detail on how organisations should go about appointing their ‘responsible person’, including explaining that this does not have to be a new appointment but must be a permanent member of staff within the organisation at Exec Director or equivalent level, for example, the organisation’s Chief Nurse or Medical Director. The draft guidance also stipulates that the ‘responsible person’ should attend appropriate training on use of force to ensure they understand the strategies/techniques that frontline staff are being trained in.
Policy on Use of Force
The Act also requires that organisations running mental health units must publish (and keep under review) a policy on use of force by staff. Apart from stipulating that the policy must set out what steps will be taken to reduce the use of force by mental health unit staff, there is little further detail provided in the Act itself about what such policies must contain.
The draft statutory guidance, on the other hand, sets out in detail what should be included within use of force policies, including: a statement of the organisation’s commitment to reducing use of force, details of the types of force and specific techniques staff may use for different patient groups, details of how patients/families/carers/advocates will be involved in care planning which sets out the preventative strategies to use of force (e.g. via advance statements) and how the organisation will work to co-produce polices with the local patient population to reflect their needs and experiences.
Information for patients about use of force
The Act requires that, as soon as reasonably practicable after admission to a mental health unit, each patient must be given information about their rights in relation to use of force by staff.
The draft statutory guidance fills in the detail and set outs out a long list of what the information provided to patients should, as a minimum, cover. The list includes, for example, which staff may use force in what limited circumstances and what approaches will be taken to avoid using it, plus details of how patients and their families/carers/advocates must be involved in care planning which addresses preventative strategies to the use of force. The guidance also highlights that tailored approaches may be needed to ensure patients are given the best opportunity to engage with the information.
Training on use of force
The Act also requires that mental health unit staff must be provided with training on appropriate use of force. There is some detail on this within the Act itself, which lists 11 topics which must be covered in use of force training, such as techniques for avoiding/reducing use of force, the impact of any use of force on a patient’s mental and physical health and how to involve patients in the planning, development and delivery of their care. The Act further stipulates that, if existing training already covers the topics listed in the Act (which we anticipate it will in many cases), staff who have received that training sufficiently recently prior to this provision coming into force will not have to do the training again until a refresher is due.
The draft statutory guidance goes much further in terms of the detail here, and sets out a breakdown of what the training should cover within each of the topic areas listed in the Act. For example, in relation to the topic ‘Use of techniques for avoiding or reducing the use of force’, the draft guidance gives a detailed list of what training on that topic should cover, such as recognising the high levels of trauma amongst patients in mental health units and person- centred care, including preventative approaches such as Positive Behaviour Support.
Organisations will need to consider these detailed training requirements carefully in order to ensure that their staff training covers all the required areas. As the draft guidance says, if the ‘responsible person’ is finding it difficult to assess whether previous staff training was adequate, they should err on the side of caution and provide further training.
Recording information about use of force
Under the Act, a record must be kept (for 3 years) of any use of force by staff which is more than ‘negligible’. Also included within the Act is quite a detailed list of information which must be recorded in each case, including the reason for use of force, whether it formed part of the patient’s care plan, the outcome of the use of force and efforts made to avoid it. The draft statutory guidance builds on this by giving some further information about what must be recorded, as well as some general points of principle about the need for organisations to consider the detail behind the data and to use that to inform their plans to reduce use of force.
The draft statutory guidance attempts to explain what is envisaged by force which is ‘negligible’ and therefore falls outside the duty to record. The guidance says it is expected that ‘negligible’ use of force will only apply in a very small set of circumstances. Only activities which are considered to be part of daily therapeutic or caring activities could possibly be considered as ‘negligible’ use of force and only then, the guidance says, if they are outside the circumstances set out in the guidance where the use of force can never be considered negligible (e.g. if the patient verbally or physically resists the contact of a member of staff, that can never be considered negligible). This part of the guidance is perhaps potentially confusing and it will be interesting to see what comes out of the consultation on this and whether it remains as currently drafted in the final version.
Incident investigation
The Act stipulates that if a patient in a mental health unit dies or suffers a serious injury in connection with use of force, regard must be had to guidance relating to the investigation of such incidents. The draft statutory guidance does not provide much further detail on this, other than to reiterate the need to comply with existing guidance/requirements around serious incident reporting.
In practice, this will mean complying with the national Serious Incident Framework (which is currently being re-vamped in the form of the Patient Safety Incident Response Framework, expected to be rolled out in 2022), plus CQC reporting requirements, which should already be happening regardless of the Act.
Police body cameras
Finally, it is worth mentioning what the draft statutory guidance says about police body cameras. The Act requires that, if a police officer attends a mental health unit on duty and is involved in assisting staff at the unit, the officer must wear a body camera and keep it operating at all times when reasonably practicable unless there are special circumstances at the time that justify not doing so. This is designed to act as a deterrent to use of excessive force, as well as providing a record of incidents involving use of force.
We had anticipated that the statutory guidance might provide further detail about how this should work in practice - e.g. how patient confidentiality would be protected, what any video footage could and could not subsequently be used for and how it will be decided whether there are ‘special circumstances’ justifying not wearing a body camera. In fact, however, the draft guidance does not go into detail on this, saying that decision-making will be a matter for the police, following College of Policing guidance about use of body cameras (a copy of which will be hyperlinked to the final version of the guidance).
What should your organisation be doing?
In practice, NHS Trusts and independent sector organisations running inpatient mental health units are likely to find that they are already complying with many of the requirements of the legislation around use of force policies, training, recording etc, especially where these overlap with existing requirements.
If there are any aspects of the draft statutory guidance that you think may be unclear or impracticable, now is the time to raise those issues by responding to the consultation, which is open until midday on 17 August. There is also an ‘easy read’ version of the draft guidance, designed to explain to people using services what the law says about use of force, which is out for consultation with the same timescale.
In terms of readiness ahead of the legislation coming into force, organisations may already have taken steps to check their compliance against the requirements of the Act back in 2018 when it was given Royal Assent but, as we now have a lot more operational detail about what is expected in the form of the draft statutory guidance, it would be sensible to revisit this now.
Whilst we may see some changes to the statutory guidance following the consultation, it is unlikely that the final version will be substantially different from the draft, which can be used by organisations to see how they measure up against the use of force requirements, including:
- Consider who in your organisation would be the appropriate ‘responsible person’ under the Act and familiarise them with what will be required of them under the Act;
- Review your existing use of force/control and restraint policy to ensure it reflects the provisions of the Act and the draft statutory guidance;
- Review the training your organisation already provides to staff on use of force and check that it covers the topic areas listed in the Act and the more detailed training content set out in the draft statutory guidance;
- Check the systems currently in place for recording information about all uses of force by staff to ensure these are sufficiently robust to fulfil the data collection requirements in the Act.
What next?
Once the government has had an opportunity to consider the responses to the consultation after it closes in August, it will publish a final version of the statutory guidance.
We anticipate that, at around the same time, the government may produce regulations bringing the Act’s substantive provisions into force.
Although we do not have an exact timescale for that currently, there is nothing to lose by taking steps now to ensure that your organisation is compliant with all requirements in the Act and accompanying statutory guidance.
How we can help
Our national team of mental health and mental capacity specialists have extensive experience in advising health and social care providers - both in the NHS and the independent sector - in relation to all aspects of the law in this area, including:
- Advice on all aspects of the Mental Health Act, including the impact of legislative changes;
- Advice on drafting and implementing policies that are compliant with legislative change and will withstand regulatory scrutiny;
- Support with investigation of serious incidents, including those relating to use of restraint; Advice on the interface between the Mental Capacity Act and Mental Health Act;
- Support in relation to CQC inspections and enforcement actions.
We also provide training on all aspects of the Mental Health Act and Mental Capacity Act, including induction and refresher courses for s.12 Approved Clinicians.
